HKSAR v. MUI WAI CHEUNG

HCMA1073/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1073 OF 2000

(ON APPEAL FROM ESCC 996 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 12 September 2000 after trial by the learned magistrate Mr Peter Law, sitting at the Eastern Magistracy, of two charges :

(1) practising medicine without registration, contrary to section 28(2)(a) of the Medical Registration Ordinance, Cap.161; and

(2) carrying on the management of an unregistered clinic, contrary to section 14(1)(a) of the Medical Clinics Ordinance, Cap.343.

The appellant was sentenced to four months' imprisonment on each charge, to be served concurrently.

2. In the first charge, the particulars alleged that the appellant on 26 August 1999 at Flat 102-103, Ground Floor, Shing Tsui House, Wan Tsui Estate, Chai Wan ("Premises A"), practised medicine while not being registered, provisionally registered or exempted from registration. In the second charge, the particulars alleged that the appellant on the same day at Premises A carried on the management of a clinic which was not registered.

3. The appellant is appealing against his convictions only.

4. The essential ingredients of the prosecution case, which the learned magistrate found to be proved, were as follows.

5. The case concerned a joint operation by the Police and the Department of Health. On 26 August 1999, an undercover police officer PW1 went to Premises A. There, PW1 met the appellant and told him that she was suffering from sore throat and mouth ulcer. The appellant took out a torch to examine her throat and said that she was suffering from "Hoi For" and "Cho Yit". At that time, an elderly woman, Madam Chan, came in and said to the appellant that she had been coughing for a long time. The appellant also used a torch to examine her throat and took a pulse check for her. The appellant then left Premises A for a few minutes. When he returned, the appellant gave PW1 a paste of ointment (exhibit P3) and a packet of pills (exhibit P4) which, upon later analysis, was found to contain a Part I poison and an antibiotic substance respectively. PW1 asked the appellant how much she should pay and the appellant said $120. PW1 gave the appellant $120 which had been marked beforehand.

6. After that, PW1 left Premises A and reported the matter to her superior PW2. Accompanying PW2 at the time were three doctors from the Department of Health including PW4 and PW5. PW1 showed PW2 and the others exhibits P3 and P4. The party then went to Premises A where the appellant was still with Madam Chan. PW2 revealed his police identity to the appellant and introduced the doctors to the appellant. A body search was conducted on the appellant by a police officer PW3 who was assigned as the exhibit officer. From the trousers pockets of the appellant, PW3 found, among other things, a wallet which contained the marked money, a packet of pills (exhibit P24) and a bottle of medical syrup (exhibit P25).

7. A search was then conducted at Premises A pursuant to a search warrant. The police found other exhibits including five thermometers, one sphygmomanometer, one stethoscope, one torch, one packet of surgical needles, seven pieces of spatula, a kidney dish and one syringe with injection needle.

8. The facts of the case were not complex. The appellant originally faced five charges. He was acquitted on Charges 3-5 which related to possession of antibiotics, Part I poisons and other drugs. In spite of the fact that the trial originally concerned five charges, the basic facts were the same. It is therefore remarkable that this case took 16 court days. Whatever the reason, the learned magistrate was faced with a considerable volume of evidence concerning a relatively straightforward raid on premises. The only additional complications came from the facts that the chain of evidence concerning the transmission of exhibits was challenged and also that there was a special issue as to admissibility of certain evidence which the learned magistrate resolved in the appellant's favour.

9. The transcript of the proceedings, which were conducted by Mr C.M. Leung for the prosecution and by Mr William Allen on behalf of the appellant, are approximately 700 pages long. Nonetheless the learned magistrate has recorded his findings in relation to all the decisions he made in a succinct 12-page document.

10. There are four grounds of appeal. The first three are purely matters of law, the fourth ground is a complaint that the learned magistrate failed to resolve discrepancies in the evidence properly.

11. The first ground concerns the admissibility of a small part of PW4's evidence. PW4 was present at the scene and was a material witness as to fact. He was a doctor and also gave evidence as an expert in his capacity as a doctor. The evidence related to identifying certain of the exhibits seized (the stethoscope, a blood pressure meter, spatulas, the kidney dish etc). This evidence occupied less than two pages of the transcript and was not challenged. Moreover PW4's qualifications and expertise as a doctor were not challenged. Mr Grounds for the appellant submits that the evidence was inadmissible because PW4 was also a witness of fact and was therefore not impartial. Somewhat surprisingly Mr Grounds also criticizes the learned magistrate for not dealing with the issue in his Statement of Findings in spite of the facts that :

(a) the point was not taken below;

(b) PW4's expertise was accepted;

(c) the expert evidence was non-controversial and not challenged; and

(d) the expert evidence was irrelevant on Charge 1 and not essential on Charge 2.

12. As a matter of law the expert evidence of an accepted expert is not inadmissible per se simply because he is also a witness as to facts. There are recognized categories of such experts who can also give factual evidence. Finger print experts and ballistics experts are two examples but the list is not closed. The fact that the expertise of the proposed witness is not challenged and neither is the truth and accuracy of his evidence are factors which could be taken into account should a court have to decide whether or not to admit it.

13. Where a situation arises, as in this case, where such evidence is admissible, it is a matter for the court to decide how much weight should be placed on it. In this case the learned magistrate had no need to consider the question of weight at all. It was unchallenged, non-controversial and non-essential evidence. The witness did not even go so far as to say that the exhibits in question were exclusively used in modern scientific medicine as opposed to purely Chinese medicine. His evidence was limited to saying that stethoscopes, surgical needles, spatulas etc. were used by registered doctors carrying out modern medicine. It is arguable that the learned magistrate did not need an expert to tell him that. It must also be emphasized that the ingredients of Charge 1depended on the transaction which took place between PW1 and the appellant concerning exhibits P3 and P4. PW4 gave no expert evidence on these exhibits. The prosecution relied on the Government Chemists Certificate as the evidence (again unchallenged) that P3 and P4 contained Part I poisons and antibiotic controlled substances which only a registered medical practitioner may lawfully dispense from a registered clinic.

14. There is one final matter I should refer to before disposing of ground 1. Being fair to both sides the learned magistrate accepted the appellant as an expert witness in his own defence. In my judgment, he correctly admitted expert evidence from both PW4 and the appellant.

15. Grounds 2 and 3 can be considered together. They are expressed in the following terms :

"Ground 2

The Learned Magistrate erred in ruling that section 31 of the Medical Registration Ordinance, Cap.161, was a negative averment.

Ground 3

The Learned Magistrate had failed to consider the meaning of the expression 'to practice medicine or surgery according to purely Chinese methods' in section 31 of the Medical Registration Ordinance; his approach to this issue was general and/or vague; and he was wrong to find that the Appellant had failed to discharge his burden of proof."

16. Taken together these grounds concern the meaning, effect and application of section 31, Cap.161. Under Charge 1 the appellant was convicted of an offence under section 28(2) :

"... any person who not being registered or provisionally registered or exempted from registration -

(a) practises medicine or surgery commits an offence"

17. The prosecution had to prove he was :

(a) practising medicine; and

(b) was not registered or exempted from registration.

18. There was no issue at trial about whether or not he was registered or in a special class that was exempt from registration to practise. The sole issue was, was he practising medicine? The evidence in support came from the transaction between himself and PW1 when he sold her controlled substances from his clinic. The facts as found by the learned magistrate support the conviction. Given the proven fact that the appellant dispensed P3 and P4 for money from his clinic, when unregistered, it becomes impossible for him to avail himself of the provisions of section 31(1). Section 31(1) permits certain persons to practise medicine according to purely Chinese methods. Having listed what facts he found proved, at paragraph 31 of his Statement, he went on to say :

"32. Having considered the matter carefully, including the nature and the form of exhibits P3 and P4, an irresistible inference could be drawn that the treatment given to PW1 was not 'purely Chinese methods'."

19. In fact, based on his findings, it was more than an inference, it was a primary fact proved beyond reasonable doubt, because the medicine given to PW1 was medicine that a doctor practising purely Chinese medicine was not permitted to give.

20. For both Charges 1 and 2 the learned magistrate in fact considered section 31(1) and concluded that it was a negative averment provision which placed a burden on the appellant to satisfy the magistrate on a balance of probabilities that he was practising medicine using "purely Chinese methods". "Purely" means only. Ground 2 of this appeal submits that he was wrong. Even though, as already indicated, the factual basis of the prosecution case, namely selling this particular medicine from his clinic, is sufficient evidence of both "practising medicine" and "carrying on the management of a clinic" so as to render reliance on section 31(1) impossible, I will nonetheless deal with it.

21. I am satisfied that the learned magistrate was correct in finding section 31(1) to be a negative averment provision. When bringing charges under Cap.161 (or indeed Cap.343 the Medical Clinic Ordinance under which Charge 2 was brought), the prosecution does not have to prove as part of its case that the defendant was not practising purely Chinese medicine. Section 94A of the Criminal Procedure Ordinance, Cap.221 is the relevant provision. By section 94A, the prosecution is not required in criminal proceedings to "negative by evidence any matter to which this subsection applies". "Any matter" is defined by subsection (4) :

"(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter."

22. Section 31(1) gives certain persons permission to practice Chinese medicine. It authorizes such practices. By inference it makes section 28(2)(a) read "(a) Practises medicine or surgery (unless and except it is medicine by purely Chinese methods) commits an offence".

23. This court finds no difficulty in concluding that the content of section 31(1) is a "matter" which comes within section 94A(4) Cap.221.

24. As for Ground 3, Mr Grounds concedes it is not his strongest ground. The complaint is that the learned magistrate's findings were vague and general on the issue of whether the appellant was practising medicine according to purely Chinese methods. The same point as already made must be repeated here. Given the findings that P3 and P4 were the very items sold to PW1 and given the Government Chemists Certificate, the prosecution evidence could only lead to the conclusion that in that particular transaction he was not practising Chinese medicine and that he was managing a clinic which was not registered. In any event, the learned magistrate demonstrated by his Statement of Findings that he had carefully considered the appellant's evidence and he found it to be unreasonable, unbelievable and evasive.

25. Ground 4 is based on the complaint that the learned magistrate did not deal with the discrepancies between prosecution witnesses adequately or properly. This is the only ground of appeal which is directed at the real issue in the case. PW1 said that the appellant sold P3 and P4 to her. The appellant said he sold her purely Chinese medicine, he did not quote a price and P3 and P4 were not the items handed to her. There was therefore a great deal of evidence concerning the recovery of, seizure of, transportation of, custody of and production of P3 and P4. If there was any reasonable doubt that P3 and P4 were not the items given to PW1 the prosecution would fail.

26. The complaint can be summarized in this way. Firstly, there were discrepancies in the evidence concerning P3 and P4 and other exhibits. Secondly, in his Statement of Findings the learned magistrate concluded that he could "accept the evidence and place full weight on it" in respect of PW1, PW3 ("the Exhibits Officer") and PW4. Thirdly, it is not logical to accept and place full weight on the evidence of witnesses who said different things. Fourthly, the discrepancies themselves were significant discrepancies of such a nature which required the magistrate to specifically resolve, one way or the other, which he did not do.

27. I think it useful at the outset of my consideration of this ground to set out what the learned magistrate's findings were. In paragraph 28 he said :

"28. It had been submitted by Mr. Allen that a lot of discrepancies in PWs' evidence, for example,

* When PW1 first shown the medicine given by the Defendant to PW2 and the doctors, what was said by the doctors about the nature by judging on the face of it.

* Whether the police did try the keys of the Defendant's on the doors and whether there was any locking device on that doors.

* Whether the doctors did give instruction to PW3 to take exhibits P3 and 4 to the government chemist for examination.

* During the search, who actually laid hands to remove the exhibits.

When I assessed each PW's evidence. I had taken into account of these discrepancies and gave thought to them one by one. I found that those discrepancies were understandable as they were due to long lapse of time and were comparatively trivial matters. Under the circumstances, I was satisfied that nobody would pay particular attention to and took effort trying to memorise those trivial matters. I found that those discrepancies were not deliberate lies and would not affect the general credibility and truthfulness of the PWs. I found that those discrepancies did not affect the material issues of the case nor the amount of weight I attached on. Those discrepancies did not raise any doubt in my mind."

28. The discrepancies complained of concern firstly exhibits P24 and P25, and secondly exhibits P3 and P4. P24 and P25 were the items allegedly given by the appellant to the other lady in the clinic at the time, Ms Chan. The discrepancy in issue is that PW3 said he recovered P24 and P25 from the appellant's pocket, together with the marked money. PW1 said she only saw the marked money and the some keys seized from the appellant's trousers. It was argued that there was conflicting evidence as to where P24 and P25 had come from which cast a doubt about the reliability of PW1 and PW3's evidence in general.

29. The significance of this discrepancy must be placed in context. The appellant himself admitted that he had two items of medicine in his pocket at the material time. He denied that they were P24 and P25, he said they were Chinese medicines. The issue therefore was - what was it that the appellant had in his pocket? The issue was not - did the appellant have any medicine in his pocket? Moreover, P24 and P25 were never sent to the Government Chemist for analysis. There was no evidence as to what they were. PW1 was not asked to identify them and they were irrelevant to the prosecution's case on Charges 1 and 2. In all these circumstances, it was not a discrepancy that the learned magistrate was bound to resolve. His remarks in paragraph 28 deal with the matter in a general way, sufficiently. It is to be noted that the discrepancies he listed in paragraph 28 were only examples.

30. More importantly, complaint is made about discrepancies concerning P3 and P4. The evidential conflict relied on is between PW3 the exhibits officer, and PW4 the doctor. PW3 said he put P3 and P4 inside a clear plastic bag and labelled it with a yellow sticker. It remained in this condition for some months before being taken from the exhibits room at the police station in January 2000. PW4, on the other hand said he examined all the exhibits at the police station. P3 and P4 were just two of dozens of exhibits seized. He said the exhibits were not in plastic bags at that time, neither were they labelled. It was PW4's task to determine which exhibits should be sent to the Government Chemist for analysis.

31. The perfected grounds of appeal summarizes this conflict as follows :

"Thereby there are a crucial discrepancies or differences in the evidence concerning the provenance and integrity of exhibits P3 and P4 on the evidence of PW3 as opposed to PW4. These discrepancies or differences had to be resolved in a proper manner which the Learned Magistrate failed to do;"

32. Again, this conflict must be placed in context. Firstly, PW3 was the Exhibits Officer in the case. He produced P3 and P4, it was his evidence taken with that of PW1 upon which the prosecution relied to prove that P3 and P4 were the items given to PW1 by the appellant. The learned magistrate described it fully in his Statement as follows :

" PW3, the exhibit officer, stated that when PW1 made a report to the joint party outside promises, PW1 did show the medicine (exbs. P3 and 4) to the party including PW2 and the doctors. PW1* took custody of exhibits P3 and 4 from PW1 after the body search on the Defendant, but before the search of premises A. He then put exhibits P3 and P4 in a plastic bag and a yellow sticker marked with '102' was stuck on the plastic bag in order to separate it from other exhibits seized at different times. In the Police Station, when he was dealing with all the exhibits seized in that operation, that yellow sticker marked with '102' was still stuck on the plastic bag with exhibits P3 and P4 inside. He further dealt with exhibits P3 and P4 by removing the yellow sticker; attaching a yellow exhibit label to that plastic bag and wrote down the description of the exhibits and signed on that label. He later handed it to the clerk who was in charge of the exhibit room. On 4-1-2000, he was instructed by PW2 to retrieve exhibits P3 and P4 from the exhibit room. He had a memo from PW2, he handed it to the exhibit clerk and he had to go through the security procedure by typing in his identity card numbers and his password in the computer of the exhibit room when P3 and P4 were retrieved from the exhibit room. On 4-1-2000, that yellow exhibit label with his written description and signature was still attached to the exhibits. In the presence of PW2, he put exhibits P3 and P4 in a temper proof evidence envelope, sealed it and both he and PW2 signed on that envelope."

(* A typo for PW3)

33. PW4's role was quite different from that of PW3. He was a doctor giving advice at the time. He made no notes of what happened and did not make a witness statement until months after the event. At trial it was PW3 who confirmed the chain of evidence concerning P3 and P4, not PW4. PW4, not surprisingly, could not say with any certainty whether P3 and P4 were the same things that were sent for analysis. PW3 could.

34. The discrepancy is neither surprising nor significant. The differences were fully ventilated before the magistrates who made findings of fact with which this court finds no good reason to interfere. Again, the learned magistrate was clearly aware of the conflicts, of which this was one, and in my judgment dealt with it sufficiently and adequately in paragraph 28 of his Statement.

35. Mr Grounds finally lists further matters which he describes as "curious" in relation to P3 and P4. I have considered them and do not think that anything of significance or importance turns on them and neither did the learned magistrate.

36. Before concluding, I should return to the first complaint upon which this ground of appeal is premised, namely, that the learned magistrate said he gave full weight to and accepted all the evidence of PW1, PW3 and PW4. Clearly, reading the Statement of Findings as a whole, his acceptance of the evidence is subject to his remarks concerning the discrepancies. However, the discrepancies have not diminished the weight he has attached to their evidence which supported the appellant's guilt. It might have been better if he had qualified his Statement that he "gave full weight and accepted all the evidence" in some way to reflect his later findings in relation to the discrepancies. However, the fact that he did is not a matter which seriously undermines the Statement of Findings, nor the correctness of the verdict nor the fact that the appellant got a fair trial.

37. The appeal is dismissed.